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Citizens challenge County Council's handling of Wailea 670 rezoning

by Rob Parsons

October 30, 2008

Last Friday an important gathering was convened in Judge Joseph Cardoza's Circuit courtroom. It was the final meeting of the evidentiary hearing spearheaded by five South Maui residents who believe their right to open participation in the planning process was hindered by the Maui County Council. Attorney Lance Collins, representing the concerned citizens, maintained that Hawaii's provision for open meetings-aka the Sunshine Law-was not heeded when the Council's Land Use Committee considered rezoning of the Wailea 670/Honua`ula project proposal.

The proposed development of 670 acres in arid South Maui for a private golf course, 1,400 housing units and amenities is perhaps the most divisive community issue councilmembers have handled this term. Wailea 670 hearings considered a myriad of possible project impacts, and proposed mitigations, over months of continued committee meetings.

Public testimony was allowed at only a handful of nearly 30 total meetings considering Wailea 670 zoning requests. But Land Use Committee Chair Michael Molina routinely recessed and reconvened meetings-including a stretch of a dozen meetings last October and November-without re-posting an agenda or allowing new testimony. This action, Collins maintains, did not uphold the spirit and intent of the Sunshine Law to conduct governmental proceedings "as openly as possible."

"In a democracy," Collins said, addressing Cardoza by quoting the Hawaii state statute, "the people are vested with the ultimate decision-making power. Governmental agencies exist to aid the people in the formation and conduct of public policy. Opening up the governmental processes to public scrutiny is the only viable and reasonable method of protecting the public's interest."

Collins added that the law provides that the definition of open meetings "shall be liberally construed," that there are strict limits on communications outside of meetings (so members cannot "caucus" privately) and that public notice of rescheduled meetings must take place at least six days in advance. While there is a provision based on a 1985 amendment to allow a meeting to be continued for a reasonable time, he asserted there is nothing in legislative history or supported by law "to continue a continued meeting, and so on."

Thus, his clients' interest in providing new testimony were foreclosed by the "serial continuation of meetings, the marathon sessions." He asked that as a remedy, the actions of the committee be voided, at least back to the October 18, 2007 meeting that ultimately spanned 13 separate sessions. In essence, that would overturn the full Council's final 5-4 vote last March to approve rezoning for the project, and send it back to the drawing board for another round of Land Use Committee meetings.

That outlook did not sit well with Honolulu Attorney William McCorriston, legal counsel for Honua`ula, as an intervening party in the case. "The remedy that the plaintiff wants is draconian," he said. "It is draconian to say we are going to upset the will of the people through passage of the ordinance by striking the decision."

"There is not a scintilla of evidence," McCorriston continued, "that my client did anything wrong. We've invested millions and millions into this project." He then read a list of "public benefits" that would be deferred, totaling $40 million.

"Now that you've seen the whole forest, and not just a few trees," McCorriston concluded, "you should decide in favor of the County and the intervenors." The "few trees" reference related to Cardoza's initial handling of the case; he issued a temporary injunction to keep the project from moving forward, based upon his assessment that the suit had sufficient merit.

Corporation Counsel attorney Mary Blaine Johnston, representing the County, argued that the plaintiff's case was "long on rhetoric and short on law." She maintained there was no legal basis for the idea that one cannot continue a continued meeting. "Under Mr. Collins' theory," she stated, "every meeting has to be one day, creating a `Groundhog Day' effect."

"This case in not about secret meetings," Johnston continued. "It is not about discussion outside the purview of meetings. There are no allegations that Council members made decisions outside of meetings."

Johnston said that the plaintiffs, "Have had their 15 minutes of fame," and that their case rests on a dictionary definition. "A lot of rhetoric, inflammatory in nature, has been strung together," she said. She asked Cardoza to deny the plaintiffs' Motion for Summary Judgment, and to grant a Motion to Dismiss.

In his sworn deposition to the court, Council member Michael Molina answered numerous questions about the Sunshine Law by responding, "I'm not sure." The transcript shows that Collins asked, "Are you claiming lack of awareness or understanding of the law as your defense in this case?"

Molina again answered, "Not sure."

The decision to continue meetings over many days without re-posting the agenda or allowing new testimony apparently was not based upon a written legal opinion, but on a 2004 e-mail response from the Office of Information Practices. Faced with a similar circumstance over multiple meetings held on Makena Resort rezoning requests, a Council staff attorney had sought guidance from OIP four years ago on posting agendas.

The matter should be decided next month. Judge Cardoza asked each of the parties to submit their Findings of Fact and Conclusions of law by November 6. He requested they appear in his courtroom again on November 17, so he could place his decision on the record.